Employment Tribunal award of almost £4.6 million for disability discrimination and harassment


14th May 2024

How much can you be awarded for disability discrimination and harassment? The recent case of Mrs R Wright-Turner v London Borough Council of Hammersmith and Fulham and Ms K Dero made headlines because the award of almost £4.6 million is one of the largest awards ever made by the Employment Tribunal.

Background

The claimant, Mrs Wright-Turner, was employed by the London Borough of Hammersmith and Fulham (the first respondent) between 13 November 2017 and 9 August 2018 as Director of Public Services Reform.

The claimant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in November 2016 for which she was on daily medication. The claimant also suffered from Post Traumatic Stress Disorder (PTSD) as a result of her previous role supporting with the response to the Grenfell Tower fire. The PTSD diagnosis was made in October 2017, shortly before starting her new job with the respondent.

The claimant’s new role was a senior one and she was responsible for setting up a new department and designing and delivering the new service and structure. Before beginning in the post, she had already identified several budgetary issues, limiting the size and resources of her department. This resulted in her often working extremely long hours, leading to exhaustion and anxiety, but she felt unable to take holiday or sick leave before the end of her probationary period on 11 May 2018.

In a meeting on 2 May 2018, concerns were raised by the local authority’s Chief Executive, Ms Dero (the second respondent), over the claimant not having raised her ADHD diagnosis during the recruitment process. Enquires were made about any adjustments and a buddy was assigned. This led the claimant to feel uncomfortable and humiliated, although it was accepted that this was not intentional. The respondents also alleged that during this meeting, extending the claimant’s probationary period was discussed. However, the Employment Tribunal did not accept that this discussion took place.

That same day, the claimant went to the pub with some colleagues, during which she suffered a breakdown and panic attack. After being taken to A&E, she was found to be depressed, suicidal and traumatised but not intoxicated, although a colleague referred to her as having ‘had a lot to drink’ in conversation with the second respondent.

Signed off work

Subsequently, the claimant was signed off work for one month because of PTSD and acute anxiety and advised to have no contact with work.

By a letter dated 10 May, although not received until 19 May and found by the Employment Tribunal to be backdated to before the end of the initial probation period, the claimant was advised that her probationary period had been extended by three months to 9 August. This was because she was ‘unable to have the conversation about the areas for progress’ due to being on extended sick leave.

The claimant remained off work for three months, before being dismissed via a letter dated 31 July 2018, and the claimant’s employment ended on 8 August on the expiry of her extended probation. The decision for dismissal was taken due to the fact the claimant had been unable to improve her performance as she was on long-term sick leave with no end in sight, the lack of contact from her in the intervening period, her high-profile role and the expectations of that role. However, the only reasons given in the dismissal letter related to budget and it lacked overall detail about how the claimant had failed her probation and why it was not again being extended. The claimant was not invited to a formal meeting to discuss her potential dismissal.

The claimant had already raised a holding grievance (stating that she would be submitting a formal grievance) on 1 August 2018 prior to receiving the termination letter. This resulted in the respondents  sending her the termination letter on 2 August (received 4 August), but backdated to 31 July to make it appear as though it had been sent before the grievance was received.

On 15 August, the claimant submitted an appeal against her dismissal and grievance via her solicitors asserting that no significant concerns had been raised about her performance or capability. She alleged discrimination and victimisation and raised concerns over the backdating of the termination letter. The respondents did not deal with this grievance or appeal.

The Employment Tribunal

The claimant brought multiple claims to the Employment Tribunal including disability discrimination and harassment including:

  • The claimant’s probation period being extended by three months without feedback on performance whilst on sick leave and without an opportunity to discuss it, which was in contravention of the respondent’s policies;
  • Dismissing the claimant without proper explanation and without giving her the opportunity to be heard before the decision was taken and without any warning or any opportunity to appeal;
  • Failure to respond adequately or at all to the grievances and appeals raised by the claimant; and
  • Procedural failings under the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The Employment Tribunal judgment was given in 2021.

It held that the claimant was disabled by reason of ADHD and PTSD at all relevant times.

It found that the meeting held on 2 May 2018 did amount to harassment, and it was reasonable for the conduct to be regarded as creating an adverse environment, although it was found that this was not deliberate.

It was also held that the claimant’s probation was extended by three months with limited feedback, which was neither in accordance with the probationary policy nor warranted an extension of the probationary period. But for the claimant’s disability-related sickness absence, the claimant would have been confirmed in post on 11 May. The extension of the probationary period was therefore related to the claimant’s disability-related sickness absence.

The claimant’s dismissal was also held to be discriminatory. A hypothetical comparator who did not have the claimant’s disabilities would not have been dismissed in the circumstances due to the absence of any evidence substantiating any performance concerns, lack of process and the limited reasons set out in the termination letter. The respondents also failed to give adequate consideration to the alternative option of extending the probationary period.

Finally, it was held that the first respondent failed to comply with the ACAS Code of Practice in relation to the claimant’s dismissal and her appeal against dismissal dated 15 August 2018, and grievance of the same date. The reasons given by the respondents were limited and unclear and the respondents failed to provide an explanation for these comprehensive failures.

Remedies hearing

The remedies hearing took place over various days between January and March 2024 and judgment given on 13 March 2024.

The Employment Tribunal found that the claimant’s health had been so impacted to the point it was unlikely she would work again. Her marriage had ended and repossession proceedings had been commenced because she had been unable to pay her mortgage.

The Employment Tribunal awarded past loss of earnings of over £327,000 and future loss of earnings up to retirement of almost £900,000. An award of over £600,000 was made for loss of pensions. There was also an award of £60,000 for injury to feelings (which exceeded the highest Vento band) as well as an award of £60,000 for psychiatric injury.

For non-compliance with the ACAS Code of Practice, the Employment Tribunal awarded an uplift of £271,479.85.

Significantly, an award of exemplary damages of £15,000 was made against the first respondents, (the Council). This award is only available against servants of the Government and is designed to punish conduct which is either oppressive, arbitrary or unconstitutional. Specific factors included the attempts by some Council witnesses to deliberately mislead the Employment Tribunal.

In total, £4,580,587.39 was awarded to the claimant, although it is reported that the Council intends to appeal this award.

What does this mean for employers?

This case reflects the powers of the Employment Tribunal to make significant awards of compensation in successful discrimination claims. As well as the considerable adverse publicity generated, the case serves as a warning to employers to follow proper procedures at all points in employment, including when grievances and appeals are raised. Employers should be aware of the risks of disability discrimination when performance management procedures are not handled properly or when extending probationary periods. Employers and their witnesses should also act honestly and not mislead the Employment Tribunal.

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